Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 2 of Hidalgo County,
Justices Rodriguez, Contreras, and Longoria
issued our original opinion in this case on February 23,
2017. Appellant, the Texas Department of Public Safety (the
"Department"), and appellee Laura Smith have each
filed motions for rehearing. See Tex. R. App. P.
49.1. We deny the motions for rehearing but withdraw our
prior opinion and judgment and substitute the following
opinion and accompanying judgment in their place.
Department challenges the county court's reversal of an
administrative decision to uphold the 180-day suspension of
Smith's driver's license. By four issues, the
Department argues: (1) the court lacked jurisdiction because
Smith did not send a copy of her petition to the State Office
of Administrative Hearings ("SOAH"); (2) the court
erred by finding that the Department did not need to be
served with notice of the final hearing; (3) the court's
judgment was erroneous because Smith did not notify the
Department of the hearing, nor did she notify the Attorney
General's Office of her intent to take a default judgment
against the Department; and (4) the court erred in finding
that the administrative decision was not supported by
substantial evidence. We reverse and remand.
21, 2015, police officer Ricky Cervantes of the Mercedes
Police Department pulled Smith's vehicle over as she was
driving from Brownsville to McAllen. Cervantes asked Smith to
provide a breath specimen, but she refused, and Cervantes
arrested her for driving while intoxicated ("DWI").
See Tex. Penal Code Ann. § 49.04(a) (West,
Westlaw through 2015 R.S.). Because Smith refused the
officer's request to provide a breath specimen, her
driver's license was automatically suspended for 180
days. See Tex. Transp. Code Ann. §
724.035(a)(1) (West, Westlaw through 2015 R.S.).
contested the suspension in an administrative hearing, but
the administrative law judge ("ALJ") upheld the
suspension. See id. § 724.041-.042 (West,
Westlaw through 2015 R.S.). Smith then filed a "Petition
of Appeal From Driver's License Suspension or in the
Alternative Petition for Occupational Driver's
License" in the Hidalgo County Court at Law Number Two.
See id. § 521.242 (West, Westlaw through 2015
R.S) (regarding petition for occupational license);
id. § 524.041 (West, Westlaw through 2015 R.S.)
(providing for appeal of administrative decision sustaining
driver's license suspension). She argued in particular
that the record before the ALJ lacked substantial evidence
showing that the officer had probable cause to stop her
vehicle. See id. § 724.042(1) (stating that the
issues to be considered in an administrative hearing on a
driver's license suspension based on refusal to provide a
blood or breath specimen include whether "reasonable
suspicion or probable cause existed to stop or arrest the
person"); Mireles v. Tex. Dep't of Pub.
Safety, 9 S.W.3d 128, 131 (Tex. 1999) ("[C]ourts
review administrative license suspension decisions under the
substantial evidence standard."); see also Tex.
Gov't Code Ann. § 2001.174(E) (West, Westlaw through
2015 R.S.) (providing that, under the substantial evidence
standard, a trial court "shall reverse or remand the
case for further proceedings if substantial rights of the
appellant have been prejudiced because" an
administrative ruling is "not reasonably supported by
substantial evidence considering the reliable and probative
evidence in the record as a whole").
sent copies of her petition, dated October 16, 2015, to the
Hidalgo County District Attorney's Office and to the
Department. On October 22, 2015, the county court sent notice
of a hearing on Smith's petition, to be held on October
29, 2015, to Smith's counsel and to the District
attorneys and an Hidalgo County assistant district attorney
appeared at the October 29 hearing, which was before any
pleadings responsive to Smith's petition had been filed.
The Department was not represented at the hearing.
Smith's attorneys presented the court with copies of the
documentary evidence submitted at the administrative hearing,
along with a copy of the ALJ's ruling. At the conclusion
of the hearing, the court emphasized that "[t]here's
nobody here on behalf of the Department of Public Safety to
make any argument, " and it orally found in favor of
days later, on November 2, 2015, the Department's counsel
filed a plea to the jurisdiction and answer to Smith's
petition in which it argued, in part, that the county court
lacked jurisdiction over the proceeding because Smith failed
to meet the mandatory requirements of section 524.041 of the
transportation code. See Tex. Transp. Code Ann.
§ 524.041. In particular, the Department complained that
Smith had not served her petition upon the Department or the
SOAH as required by that statute. See id. The
Department's pleading also generally denied Smith's
contention that the ALJ's ruling was not supported by
county court subsequently issued a written judgment
concluding that the ALJ's ruling was not supported by
substantial evidence and reinstating Smith's driver's
license. The Department filed a motion for new trial which
was denied by operation of law, see Tex.R.Civ.P.
329b(c), and it then perfected this appeal.
County Court Jurisdiction
first issue, the Department contends that the county court
lacked subject-matter jurisdiction because Smith failed to
send notice of her administrative appeal in that court to the
SOAH. We review questions of subject-matter
jurisdiction de novo. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
code section 524.041, which authorizes an appeal of an
ALJ's decision on a driver's license suspension,
states: "A person who files an appeal under this section
shall send a copy of the petition by certified mail to the
[D]epartment and to the [SOAH] at each agency's
headquarters in Austin." Tex. Transp. Code Ann. §
524.041(c). In 1999, we held that this requirement was
mandatory and failure to comply with it deprived the county
court of jurisdiction. Tex. Dep't of Pub. Safety v.
Benoit, 994 S.W.2d 212, 214 (Tex. App.-Corpus Christi
1999, pet. denied).
the Texas Supreme Court observed in Dubai Petroleum Co.
v. Kazi that deeming a provision jurisdictional
"opens the way to making judgments vulnerable to delayed
attack for a variety of irregularities that perhaps better
ought to be sealed in a judgment." 12 S.W.3d 71, 76
(Tex. 2000) (citing Restatement (Second) of Judgments §
12 cmt. b (1982)). The Dubai Court noted instead
that "the modern direction of policy is to reduce the
vulnerability of final judgments to attack on the ground that
the tribunal lacked subject matter jurisdiction."
Id. (citing Restatement (Second) of Judgments §
11 cmt. e). Because of these consequences, the Texas Supreme
Court has been "reluctant to conclude that a provision
is jurisdictional, absent clear legislative intent to that
effect." City of DeSoto v. White, 288 S.W.3d
389, 393 (Tex. 2009) (citing Igal v. Brightstar Info.
Tech. Group, Inc., 250 S.W.3d 78, 83 (Tex. 2008);
Dubai, 12 S.W.3d at 75-76).
Roccaforte v. Jefferson County, the supreme court
found that a statute requiring a plaintiff suing a county to
provide written notice of the suit to the county judge and
the local county or district attorney was not jurisdictional
because the requirements could only be satisfied after suit
is filed. 341 S.W.3d 919, 925 (Tex. 2011). That case involved
a local government code provision requiring notice to be
"delivered by certified or registered mail by the 30th
business day after suit is filed." Id. (citing
Tex. Loc. Gov't Code Ann. § 89.0041(b) (West,
Westlaw through 2015 R.S.)). The statute also provides that
"[i]f a person does not give notice as required by this
section, the court in which the suit is pending shall dismiss
the suit on a motion for dismissal made by the county or the
county official." Tex. Loc. Gov't Code Ann. §
89.0041(c). The fact that "a county can waive a
party's noncompliance" with the notice requirement
confirms that "compliance with the notice requirements
is not jurisdictional." Roccaforte, 341 S.W.3d
at 926. The Court observed that government code section
311.034 "applies to prerequisites to suit, not
notice requirements that can be satisfied only after
suit is filed." Id. at 926 (citing Tex.
Gov't Code Ann. § 311.034 (West, Westlaw through
2015 R.S.) ("Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional
requirements in all suits against a governmental
notice requirement at issue here does not explicitly provide
that the court below may dismiss the cause only upon a motion
to dismiss made by the defendant, as did the statute at issue
in Roccaforte. Compare Tex. Transp. Code
Ann. § 524.041(c) with Tex. Loc. Gov't Code
Ann. § 89.0041(c). Nevertheless, it is clear that, as in
Roccaforte, the section 524.041(c) notice
requirement is not a prerequisite to suit but instead may
only be accomplished after suit is filed.
See Tex. Transp. Code Ann. § 524.041(c). In
particular, the statute provides that the copy of the
petition to be sent to the SOAH "must be certified by
the clerk of the court in which the petition is filed, "
a task which can necessarily be done only after suit is
filed. See id. ("A person who files an appeal
under this section shall send a copy of the petition by
certified mail to the department and to the State Office of
Administrative Hearings at each agency's headquarters in
Austin. The copy must be certified by the clerk of the court
in which the petition is filed."). Accordingly, in light
of the Texas Supreme Court's holdings in Dubai,
DeSoto, and Roccaforte, we disavow
Benoit and conclude that the section 524.041(c)
notice requirement is not jurisdictional because there is no
clear legislative intent to that effect. See
Roccaforte, 341 S.W.3d at 925-26; DeSoto, 288
S.W.3d at 393; Dubai, 12 S.W.3d at 76.
Department additionally contends that the county court lacked
jurisdiction because Smith failed to obtain an official copy
of the record of the administrative hearing. It suggests
that, without a certified copy of the administrative record
from SOAH, "there was no way for the trial court to
ascertain whether the documents provided by Smith were
offered or admitted at the administrative hearing, whether
there were any objections made or sustained to the documents,
or whether the documents comprised the whole of the evidence
presented to the ALJ." The Department notes that, in
reviewing an appeal of an administrative decision, the county
court's review must generally be "on the record
certified by the [SOAH] with no additional testimony."
Tex. Transp. Code Ann. § 524.043(a) (West, Westlaw
through 2015 R.S.); see Tex. Gov't Code Ann.
§ 2001.175(e) (West, Westlaw through 2015 R.S.) ("A
court shall conduct the review sitting without a jury and is
confined to the agency record, except that the court may
receive evidence of procedural irregularities alleged to have
occurred before the agency that are not reflected in the
record."). It also notes that the SOAH is responsible
for providing a copy of the official administrative record to
the court. See Tex. Gov't Code Ann. §
2001.175(b) ("After service of the petition on a state
agency and within the time permitted for filing an answer or
within additional time allowed by the court, the agency shall
send to the reviewing court the original or a certified copy
of the entire record of the proceeding under review.").
agree with the Department that, if the court was not
presented with the entire administrative record, the court
would not be able to conduct a meaningful review of the
ALJ's decision. See, e.g., Tex. Dep't of Pub.
Safety v. Story, 115 S.W.3d 588, 598 (Tex. App.-Waco
2003, no pet.) ("[A] party seeking review of an adverse
administrative determination does not receive a
'meaningful' appeal if the reviewing court affirms
the challenged decision without the 'entire record'
as contemplated by Section 2001.175(b), at least when the
parties have not stipulated to a 'shortened
record.'" (citing Tex. Gov't Code Ann. §
2001.175(b)). But that does not mean the failure to present
the administrative record deprives the court of jurisdiction.
The statute requiring the SOAH to provide a copy of the
administrative record states that it is done "[a]fter